T.Chatterjee, J. - (1.) This is an appeal from a judgment and/or order passed by a learned Judge of this Court on 16th December, 1991 in Company Petition No. 324 of 1991 whereby and whereunder the application for winding up of the Tea Trading Corporation of India Ltd. (hereinafter referred to as 'the company') the appellant herein was admitted subject to scrutiny for an amount of Rs. 10,35,314/-
(2.) The facts leading to filing of this appeal are enumerated below:-- The company had neglected to pay the respondent Rates and Taxes which they are liable to pay or deposit under an agreement dated 24th March, 1987 entered into by the company and the respondent. The respondent is a lessee of premises in question and they have sub-let a portion of the same to the company. The respondent was paying Municipal Taxes leviable in respect of the premises prior to 1st April, 1980. The valuation of the premises was determined on the basis of the rents paid by the respondent to the landlord. By reason of the creation of the tenancy in favour of the company, the valuation of the premises was enhanced and enhanced tax was also imposed by the Municipal Authorities. In addition, from 1st April, 1984 a surcharge was levied by the Municipal Authorities in respect of the said premises under the provisions of the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as the Act). The surcharge was payable by reason of the commercial user of the premises. On 24th March, 1987 an agreement was entered into between the respondent and the company, the operative part of which insofar as it is relevant provides as follows:-- "(I) Notwithstanding anything to the contrary contained in any earlier agreement, letter, pleading of documents and notwithstanding anything contained in the Calcutta Municipal Corporation Act. 1980 or any earlier or subsequent enactments, all municipal taxes payable thereunder in respect of the said premises by the Club shall be shared from 1st February,,, 1980 between the Club and the TTCI and follows: (a) The Club shall be liable to pay the Club's share in its entirety. (b) TTCI shall be liable to pay and pay TTCI's share in its entirety. (c) The liability for surcharge shall be shared between the Club and TTCI proportionately in the same proportion as the Club's share bears to the TTCI's share."
(3.) By a letter dated 4th September, 1990 the respondent claimed a sum of Rs. 10,35,374/- with interest on account of the agreed share of Corporation taxes payable in respect of the said premises by the company and served a notice under Section 434 of the Companies Act, 1956 on the company/appellant. According to the respondent, no reply was received to the notice under Section 434 of the Companies Act by the respondent. Subsequently the application for winding up of the company was filed at the instance of the respondent on the ground that the company was commercially insolvent.;